This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal No.

2012AP1624-CR

Cir. Ct. No.2011CF1302

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT I

State of Wisconsin,

Plaintiff-Respondent,

v.

Jeremy G. Lavender,

Defendant-Appellant.

APPEAL
from a judgment and an order of the circuit court for Milwaukee County:mel
flanagan, Judge.Affirmed.

Before Curley, P.J., Kessler and Brennan, JJ.

¶1PER CURIAM. Jeremy G. Lavender appeals
from an amended judgment of conviction for one count of stalking, contrary to Wis. Stat. § 940.32(2) (2011-12).[1]He also appeals from an order denying his
postconviction motion for resentencing.Lavender argues that he is entitled to a new sentencing hearing because
the trial court failed to adequately explain the sentence it imposed.We disagree and affirm.

BACKGROUND

¶2Lavender was charged with one count of stalking, domestic
abuse, and one count of violating a domestic abuse injunction.According to the criminal complaint, after he
and his girlfriend broke up, Lavender continued to try to contact her by
sending text messages and calling her on the telephone.Over a period of about two months, the
messages became threatening.

¶3Lavender’s ex-girlfriend obtained a domestic abuse injunction
against him on March 15, 2011; Lavender was served with a copy of the
injunction in court.Nonetheless, he
sent her 188 text messages between March 15 and March 19, 2011; gained access
to her cell phone password and changed her voicemail message to a vulgarity;
posted a sexually explicit video of her on the internet and sent her a
profanity-laden message about it; and engaged in a variety of other harassing
and threatening behavior.

¶4On March 21, 2011, Lavender’s ex-girlfriend arrived home to
find Lavender climbing a ladder to her balcony.She called the police and they took Lavender into custody.

¶5Pursuant to a plea agreement, Lavender agreed to plead guilty
to one count of stalking and the State dismissed the count of violating a
domestic abuse injunction.The State
agreed to recommend an unspecified period of incarceration followed by a period
of supervision, and Lavender was free to argue.The maximum potential sentence was eighteen months of initial
confinement and two years of extended supervision.SeeWis. Stat. §§ 940.32(2),
939.50(3)(i), and 973.01(2)(b)9.The
trial court accepted Lavender’s plea and found him guilty.[2]

¶6At sentencing, the State provided additional details of
Lavender’s stalking, including the fact that he:threatened to beat his ex-girlfriend; created
false Facebook accounts for his ex-girlfriend that he used to harass his
ex-girlfriend’s new boyfriend; placed telephone calls to his ex-girlfriend that
purported to be from her new boyfriend, and ransacked her home.The State also noted that Lavender’s criminal
history included two counts of theft of movable property, one count of retail
theft, and one count of possession of THC.Consistent with the plea agreement, the State asked the trial court to
impose a period of initial confinement followed by a period of extended
supervision.

¶7Lavender’s trial counsel argued that Lavender should be
sentenced to time served, which was 158 days.In the alternative, trial counsel suggested that the trial court place
Lavender on probation and impose and stay jail time as a condition of
probation.Trial counsel argued that
Lavender had “learned his lesson” and “never, ever, ever, ever again intends to
have contact with” his ex-girlfriend.

¶8The trial court began its sentencing remarks by considering
Lavender’s character and criminal history, noting that Lavender had prior
convictions and “ongoing issues with drugs and alcohol.”It gave Lavender credit for pleading guilty
and for attending four weeks of “dual diagnosis” group meetings for those with
substance abuse and mental health issues.The trial court also discussed Lavender’s stalking, stating that
Lavender had “put a lot of people through virtual hell for months and months
and months” and simply refused to stop his activities, even though many people
asked him to stop.The trial court noted
that Lavender “could have been charged with many, many other crimes” as a
result of his actions over a three-month period.The trial court also commented on the fact
that when Lavender was on probation for his crimes in the past, he “had the
opportunity for some treatment … but … didn’t successfully complete it.”The trial court said that while Lavender was
in the community, he did not have his alcohol consumption “under control.”

¶9The trial court said “based on all these facts and
circumstances … a time-served disposition is totally unacceptable [because] …
[i]t depreciates the severity and intensity of this behavior
tremendously.”The trial court stated
that it did not have confidence that Lavender has “the tools at this point in
time to get out there and handle all this stress and all these inclinations and
obsessive behavior” and, therefore, Lavender “needs to have a period of
incarceration, which is what the [S]tate has recommended, and a period of
supervision.”The trial court explained:

The incarceration gives you
time to work on those dual diagnosis issues … that you need to build your
confidence and ability to be law abiding when you come back.And then you need to be in the community
supervised closely to maintain your behavior to the standards of the
community….

For those reasons the court is
going to … issue a sentence which will have an initial period of confinement of
18 months with credit of 158 days, and then a supervision period of two years
on your extended supervision.

¶10Lavender filed a postconviction motion for resentencing in
which he argued, as relevant to this appeal, that the trial court erroneously
exercised its sentencing discretion because it did not consider probation as
the first alternative sentence, adequately explain the sentence, or explain why
the maximum sentence was necessary.The
trial court denied the motion in a written order.[3]The trial court’s order did not offer any
additional explanation of its sentence.This appeal follows.

DISCUSSION

¶11Lavender challenges his sentence.Our standard of review is well-settled and
places a heavy burden on a convicted defendant.Sentencing lies within the trial court’s discretion, and appellate
review is limited to considering whether discretion was erroneously
exercised.State v. Gallion, 2004 WI
42, ¶17, 270 Wis. 2d 535, 678 N.W.2d 197.Sentencing decisions “‘are generally afforded a strong presumption of
reasonability because the [trial] court is best suited to consider the relevant
factors and demeanor of the convicted defendant.’”Id., ¶18 (citation omitted).

¶12In Gallion, our supreme court stated that trial courts must “explain
the reasons for the particular sentence they impose” and “provide a ‘rational
and explainable basis’ for the sentence.”Id., ¶39 (citation omitted).Specifically, a court must address three things during its sentencing
remarks.First, the court must “specify
the objectives of the sentence on the record.”Id., ¶40.Proper
sentencing objectives include “the protection of the community, punishment of
the defendant, rehabilitation of the defendant, and deterrence to others.”Id.Second, the court must “describe the facts relevant to these
objectives.”Id., ¶42.Third, the court must “identify the factors
that were considered in arriving at the sentence.”Id., ¶43.The primary factors the court must consider
are the gravity of the offense, the character of the defendant, and the need to
protect the public.State v. Ziegler, 2006 WI
App 49, ¶23, 289 Wis. 2d 594, 712 N.W.2d 76.The court may also consider additional factors.Seeid.

¶13Applying those standards here, Lavender does not dispute that
the trial court considered proper sentencing factors.What Lavender takes issue with is the trial
court’s explanation of its sentence.He
argues that the trial court’s “sentencing rationale was inadequate because it
failed to explain why the maximum sentence was required” and the trial court
“did not set forth its ‘process of reasoning’ for imposing this specific
sentence.”He continues:“[T]here is simply not a clearly articulated
explanation on the record of the link between the facts, factors, sentencing
objectives and how specifically each
of the components of the sentence promote the sentencing goals.”Lavender also complains that the trial court
failed to “explicitly consider probation as the first alternative.”

¶14We are not convinced that the trial court failed to adequately
explain its sentence.First, we consider
Lavender’s argument that the trial court was required to “explicitly consider probation as the first alternative.”(Emphasis added.)Gallion states:“[Trial] courts should consider probation as
the first alternative.Probation should
be the disposition unless:confinement
is necessary to protect the public, the offender needs correctional treatment
available only in confinement, or it would unduly depreciate the seriousness of
the offense.”Id., 270 Wis. 2d 535,
¶44.We agree with the State that the
trial court’s “consideration of probation is implicit from its rejection of a
time-served disposition, and its conclusion that incarceration was needed to
rehabilitate Lavender and punish him for his crime.”Specifically, the trial court noted that
Lavender “need[s] some more tools” to cope with his stress and obsessive
behavior and found that a period of incarceration was necessary to assist
Lavender.The trial court did not need
to explicitly state that it was rejecting probation when the trial court’s
remarks indicate that the trial court considered and ultimately rejected
alternatives less severe than incarceration, including probation and a
time-served disposition.Seeid., ¶49 (rejecting notion that
trial court is required to use “‘magic words’”).

¶15Next, we consider Lavender’s argument that the trial court “was
remiss in failing to explain why the maximum sentence was necessary to achieve
its sentencing objectives of rehabilitation, punishment, and deterrence.”Lavender faults the trial court for not
acknowledging that it was imposing the maximum sentence or “declar[ing] that
Mr. Lavender’s conduct was one of the most aggravated breaches of the
statute.”Lavender also complains that the trial court did not
adequately weigh his short criminal history and his efforts at rehabilitation,
including meeting with a social worker and attending Alcoholics Anonymous
meetings.

¶16The State responds:

Lavender has not shown any
error.Gallion does not require
a court to use any specific language in issuing a sentence.…[The trial court’s] reasoning is plain from
the record.The court issued the
sentence it did because it concluded the severity of Lavender’s conduct and his
rehabilitative needs required it.

Additionally, while the court
did not specifically hold that Lavender’s stalking was among the most
aggravated violations of the stalking statute, this too is implicit in the
court’s decision, particularly its comment that Lavender could have been
charged with “dozens” of crimes for what he did.Finally, Lavender’s claim the court did not
properly consider his rehabilitation attempts or his criminal record also does
not show error. The court weighed these
factors, just not in the way Lavender wanted it to.

(Record and case citations
omitted.)We agree with the State’s
reasoning.The trial court recognized
the severity of Lavender’s conduct when it referred to his stalking as “really,
really scary, dangerous, and completely criminal behavior.”The trial court explained why it believed
that Lavender needed a period of incarceration to pursue treatment and as
punishment.The trial court
recognized—on the record in response to trial counsel’s question—that given
Lavender’s five-month sentence credit, Lavender would be serving thirteen
months in initial confinement.We are
unconvinced that the trial court erred by not explaining precisely why it chose
to impose a total of eighteen months of initial confinement rather than twelve
months or some other period of time.Seeid. (“We are mindful that the
exercise of discretion does not lend itself to mathematical precision….As a result, we do not expect [trial] courts
to explain, for instance, the difference between sentences of 15 and 17
years.”).

¶17In summary, we conclude that the trial court’s sentencing
explanation was adequate and that the trial court properly exercised its
sentencing discretion.Lavender is not
entitled to resentencing.

By the Court.—Judgment and order affirmed.

This
opinion will not be published.SeeWis.
Stat. Rule 809.23(1)(b)5.

[1] All
references to the Wisconsin Statutes are to the 2011-12 version unless
otherwise noted.

[2] The
Honorable Mary Kuhnmuench accepted Lavender’s plea and found him guilty.The case was then transferred due to judicial
rotation and the Honorable Mel Flanagan sentenced Lavender and denied his
postconviction motion.

[3] The
trial court also rejected Lavender’s argument that the State breached the plea
agreement when it mistakenly told the trial court at sentencing that the second
count was dismissed and read in, rather than simply dismissed.Lavender has not appealed the trial court’s
rejection of that argument and we do not discuss it further.Finally, we note that the trial court granted
Lavender’s motion to vacate the DNA surcharge.